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MPs should listen to Senate on assisted dying: Editorial

Senate rejection of a key government requirement to qualify for doctor-assisted suicide should trigger a compromise leading to better law.

Protesters rally against Bill C-14, the medically assisted dying bill, on Parliament Hill in Ottawa on June 1. (Justin Tang / THE CANADIAN PRESS)

Thu., June 9, 2016

The Senate is challenging Canada’s elected government on the contentious issue of physician-assisted suicide by scrapping a key provision insisted upon by Prime Minister Justin Trudeau.

An amendment approved by senators late Wednesday would make doctor-assisted dying more widely available — no longer restricting it to those already at death’s door, where their natural passing is “reasonably foreseeable.”

It would be understandable for the government to bristle at such impertinence. The unelected and scandal-prone upper chamber elicits little regard from most Canadians. But its actions cannot be dismissed. The Constitution gives senators power to make amendments and, in this case, the change they propose warrants serious attention.

On the whole, the Liberal government’s legislation represents a credible and sympathetic approach to legalizing doctor-assisted suicide. It would ease people’s suffering while also protecting the depressed and vulnerable from opting for state-sanctioned death because of temporary despair.

It came in response to the Carter v. Canada Supreme Court ruling last year, which found the existing law that criminalized assisted suicide was cruelly subjecting critically ill people to “severe and intolerable suffering.” The court gave Parliament until Feb. 6 to pass new rules to correct this injustice, later granting an extension to June 6.

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The federal government missed both deadlines. Trudeau did manage to pass Bill C-14 in the House of Commons but it remains before the Senate where debate is expected to continue into next week.

With the old rules struck down and no federal law to replace them, patients and physicians are operating in legal limbo. Provinces are issuing their own directives and there’s little consistency across the country on what is, quite literally, a matter of life and death.

It’s important that Ottawa put a new law in place as quickly as possible, but even more vital that it get it right. As much as Senate critics may be loath to admit it, the chamber of “sober second thought” makes a point worth pondering with its amendment.

The change, approved by senators in a 41-30 vote, hews more closely to the Supreme Court’s ruling than does Bill C-14. The top court unanimously found that suffering people should have access to a doctor’s assistance in ending their life if they have a “grievous and irremediable condition” leaving them in a state of “irreversible decline.” There’s no mention of being near death.

Giving weight to the Senate’s action was the opinion of constitutional scholar Peter Hogg, who told a committee examining C-14 that overly restrictive wording had rendered the government’s legislation unconstitutional.

Federal Justice Minister Jody Wilson-Raybould had told the same Senate committee she was “100 per cent confident” that Kay Carter, the British Columbia woman whose case was at the heart of the Supreme Court ruling, would have been granted a physician-assisted suicide under Bill C-14.

Carter was 89, suffering intolerable pain from spinal stenosis, and was in a state of irreversible decline. According to Wilson-Raybould, the legislation’s requirement that natural death be “reasonably foreseeable” was met in this case by virtue of Carter’s “age and her frailty.”

But what about someone in the same state as Carter — only 30 years younger? Their death wouldn’t be “reasonably foreseeable” in the same way. It’s conceivable they would be condemned to spending decades in agony before satisfying the requirements of Bill C-14. That doesn’t seem right.

The government and Senate have both taken principled positions on this most heartfelt of issues. It isn’t a matter of crass partisanship. A majority in both chambers is sincerely pursuing what it believes is in the best interest of Canadians. In that spirit, a compassionate compromise on physician-assisted suicide should be possible — one that protects the vulnerable while doing a better job of easing the agony of those condemned to suffering.

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